Richard S., In re

• Citation: 2 Cal.Rptr.2d 2,819 P.2d 843,54 Cal.3d 857
• Decision Date: 02 December 1991
• Docket Number: No. S016631,S016631
• Parties: , 819 P.2d 843 In re RICHARD S., a Person Coming Under the Juvenile Court Law. Pedro R. SILVA, as Chief Probation Officer, etc., Plaintiff and Respondent, v. LORI S., Defendant and Appellant.
• Court: California Supreme Court

Page 2

2 Cal.Rptr.2d 2

54 Cal.3d 857, 819 P.2d 843

In re RICHARD S., a Person Coming Under the Juvenile Court Law.

Pedro R. SILVA, as Chief Probation Officer, etc., Plaintiff and Respondent, v. LORI S., Defendant and Appellant.

No. S016631.

Supreme Court of California,

In Bank.

Dec. 2, 1991.

Dallas Sacher, under appointment by the Supreme Court, Sixth Dist. Appellate Program, and Margarita Orozco, under appointment by the Court of Appeal, Santa Clara, for defendant and appellant.

Steven M. Woodside, County Counsel, Vanessa Zecher Cain and Diane L. Bennett, Deputy County Counsel, San Jose, for plaintiff and respondent.

Leo Himmelsbach, Dist. Atty., Daniel A. Palmer and Penelope M. Blake, Deputy Dist. Attys., Juvenile Div., San Jose, for minor.

MOSK, Justice.

The question before us is whether a referee lacks jurisdiction to enter a final order in a juvenile matter if the superior court fails to strictly follow the provisions of rule 244 of the California Rules of Court in appointing the referee as a temporary judge. We determine that error in failing to follow rule 244 is not jurisdictional when the parties have stipulated to trial by temporary judge and the requirements of article VI, section 21 of the California Constitution are otherwise met.

I

During a custody dispute in the family court, when it appeared that the family court services custody evaluation would recommend that father should receive custody of the child, the child made an accusation of sexual abuse against father. The county filed a petition under Welfare and Institutions Code section 300 to declare the child a dependent ward of the juvenile court.

On April 22, 1988, Kristine McCarthy, referee of the Juvenile Court of Santa Clara County, ordered that the child be placed in protective custody in juvenile hall. The form order, clearly referring to McCarthy as a referee, set a hearing in the matter in department IV of the juvenile court for May 13, 1988.

On May 13, 1988, the matter was continued by Referee McCarthy. The clerk's transcript notation of this hearing referred to her as a judge. The clerk's transcript also contains a form stipulation dated May 20, 1988, in which the attorney representing the child, and the two attorneys representing mother and father, signed the written stipulation that McCarthy "be appointed Judge Pro Tempore of the Superior Court to try this action." The form calls for the signature of a judge of the superior court approving the referee's appointment as a temporary judge, but no such signature appears. McCarthy entered her signature indicating that she had subscribed to the oath of office.

The jurisdictional hearing commenced on November 4, 1988, the court reporter noting that the judge presiding was the Honorable Kristine McCarthy, "Judge Pro Tempore." ¹ At the conclusion of the hearing on Monday, November 21, 1988, at which the court found the child a dependent ward of the court and ordered him placed in his father's custody, the court advised the parties of their right of appeal to the Court of Appeal. ²

The clerk's transcript also contains another form stipulation, dated November 10, 1988, and stamped as filed on November 22, 1988, in which counsel for mother and father signed a stipulation to McCarthy presiding as "Judge Pro Tempore." The portion of the form noting that the superior court ordered McCarthy appointed as a temporary judge is signed by a judge of the superior court, and McCarthy again entered her signature indicating that she had taken the oath of office.

Mother appealed, arguing, among other things, that the court's order was void because of defects in the stipulation and order authorizing the referee to sit as a temporary judge. The Court of Appeal rejected these arguments and affirmed the judgment.

II

Article VI, section 21 of the California Constitution provides: "On stipulation of the parties litigant the court may order a cause to be tried by a temporary judge who is a member of the State Bar, sworn and empowered to act until final determination of the cause."

Rule 244 of the California Rules of Court (hereafter rule 244) amplifies these requirements, particularly by providing for written stipulations. It provides in pertinent part: "The stipulation of the parties litigant that a case may be tried by a temporary judge shall be in writing.... It shall be submitted for approval to the presiding judge or to the supervising judge of a branch court. The order designating the temporary judge shall be endorsed upon the stipulation, which shall then be filed. The temporary judge shall take and subscribe the oath of office, which shall be attached to the stipulation and order of designation, and the case shall then be assigned to the temporary judge for trial. After the oath is filed, the temporary judge may proceed with the hearing, trial and determination of the case."

Mother argues that because the order signed by a superior court judge authorizing the referee to act as a temporary judge was not filed until the conclusion of the dispositional hearing, the referee lacked jurisdiction to enter a final order. ³ She argues that under article VI, section 21 of the California Constitution (hereafter article VI, section 21), a juvenile court referee may not act as a temporary judge absent a written order of the superior court. The requirements of rule 244, she maintains, are of constitutional stature, so that failure to meet those requirements is jurisdictional error. She relies on the familiar rule that the parties cannot confer jurisdiction by consent. ⁴

At the outset we dispose of the claim that the failure of the clerk to file the written order authorizing the referee to sit as a temporary judge before the entry of the jurisdictional order was constitutional error within the terms of article VI, section 21. That section simply provides that a court may order a cause to be tried by a temporary judge. It appears to us that the court fulfilled this function by assigning the matter for trial before a referee the parties had stipulated would sit as a temporary judge and who had subscribed to the oath of office.

Mother objects that the history of the provision indicates a written order must precede any judicial act by the temporary judge. She points out that article VI, section 21 is based on the now repealed article VI, section 5, which provided that the selection of a temporary judge "shall be subject to the approval and order of the court." As the 1966 revision of the provision was not intended to achieve a substantive change, but simply to restate the provision in modern terms (People v. Tijerina (1969) 1 Cal.3d 41, 48, 81 Cal.Rptr. 264, 459 P.2d 680), she reasons that a requirement of a prior written order survives in the current constitutional language. We do not accept her premise, however, that the original language required a prior written order, or any act beyond the assignment of a cause for trial before an eligible person who sits by stipulation as a temporary judge. In any event, here the court did sign a written order before the referee entered her order.

Mother makes a similar argument to indicate that the requirements of rule 244 are jurisdictional. She notes that the former article VI, section 5 of the Constitution provided the appointment of a temporary judge "shall also be subject to such regulations and orders as may be prescribed by the Judicial Council." Though this language was omitted from the current provision, she argues there was no intent to diminish the authority of the Judicial Council, but rather the language was omitted because "the Judicial Council's general rulemaking authority [was] continued in Section 6 of Article VI and a separate statement in [section 21 was] unnecessary." (Judicial Council of Cal., Ann.Rep. (1967) p. 89.)

Even interpreting the constitutional language in light of the earlier provision, we do not accept the premise that because the Constitution provided the Judicial Council was to establish rules with respect to the appointment of temporary judges, the Constitution intended to provide that failure to follow those rules precisely is error depriving the tribunal of jurisdiction. Neither the former nor the current constitutional language suggests this, and no other authority has been called to our attention to indicate that the Constitution was intended to make Judicial Council rules on this point jurisdictional. The Judicial Council is simply empowered to "adopt rules for court administration, practice and procedure, not inconsistent with statute...." (Cal. Const., art. VI, § 6.)

Therefore, although there is doubt that Judicial Council rules may affect jurisdiction in this instance, for purposes of discussion we shall assume that they may. The rules have the force of statute to the extent that they are not inconsistent with legislative enactments and constitutional provisions. (Albermont Petroleum Ltd. v. Cunningham (1960) 186 Cal.App.2d 84, 89, 9 Cal.Rptr. 405, questioned on other grounds in Mann v. Cracchiolo (1985) 38 Cal.3d 18, 28-29, 210 Cal.Rptr. 762, 694 P.2d 1134; see also People v. Wright (1982) 30 Cal.3d 705, 712, 180 Cal.Rptr. 196, 639 P.2d 267.) As with any other statute, the question whether failure to comply with the rule deprives the tribunal of jurisdiction is one of legislative intent. (Averill v. Lincoln (1944) 24 Cal.2d 761, 764, 151 P.2d 119 [rule requiring that party "shall" serve certain notice on appeal is not jurisdictional]; see also Jacobs v State Bar (1977) 20 Cal.3d 191, 198, 141 Cal.Rptr. 812, 570 P.2d 1230; Morris v. County of Marin (1977) 18 Cal.3d 901, 910, 136 Cal.Rptr. 251, 559 P.2d 606.)

The contention that the requirements of rule 244 are jurisdictional is one that has divided the Courts of Appeal. In two cases, the Fifth District has held that failure to follow the procedure set out in rule 244 is jurisdictional error requiring reversal. The first case, In re Damian V. (1988) 197...